Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
I recently bought a home with my boyfriend; it is 3 houses attached, mine being the house sharing the driveway with a neighbor, the people attached to my house are using the driveway and going over my land to park their car in the back of the house (these people have no way of getting back there with their car besides my driveway). When I bought the house I was told there were no easements on my property but that the neighbor I share the driveway with has an easement on her property saying they are not allowed to block the driveway in any way. I now want to put up a fence on my portion of the land but that means the people will no longer be allowed to park their car in their backyard. The issue is I cannot get a straight answer from anyone if this is allowed or not. I’m just trying to figure out the necessary steps to take to be
> able to put up this fence. Thank you.
>
An easement is the right to use someone else’s property. If your neighbor is using your property (by driving across it), there are only three possibilities: 1) they have an easement, 2) they have no easement,
but have permission, 3) they have neither an easement nor permission (this is also called “trespassing”).
If they have an easement, it should be in the property records. If you purchased title insurance when you bought the property, you should have a report showing (amongst other things) what easements are on the
property, and the title insurance company should defend you if they’re wrong about that. If you don’t have title insurance, you’re probably going to have to hire an attorney to get an authoritative answer on
whether or not an easement exists.
If they have permission, ideally there will be a record of this, as well. The nice thing about permission is that it can be revoked. You might not have a happy neighbor if you do that, but you’d be within your
legal rights.
If they have neither, you’re in a particularly difficult situation. There is a concept known as a prescriptive easement, which basically means that if you use someone’s land without permission for long enough, you gain the legal right to continue doing so. How long is “long enough” varies from state to state, but basically it’s a question of fact whether your neighbor’s use has “ripened” into a defensible legal right. Again, I strongly recommend you consult with an attorney to determine your rights in this scenario.
All the above is about your legal rights, but on a more practical level, working with your neighbor to find a solution that meets both your needs is always the better option, especially given that you’re
still going to be living next door afterward.
